REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO. E028 OF 2025
IN THE MATTER OF THE ESTATE OF SOLOMON KIMETO ARAP SIMWOLO alias SOLOMON ARAP SIMWOLO (DECEASED)
JANE CHELANGAT KIMETO.................................1ST PROTESTOR/APPLICANT
REDINAH CHEPKOSKEI KIMETO.............................2ND PROTESTOR/APPLICANT
VERSUS
PATRICK KIMUTAI RUGUT..................................PETITIONER/RESPONDENT
Ruling
1. Summons dated 7th October 2025 filed by Jane Chelangat Kimeto and Redinah Chepkoskei Kimeto, the 1st and 2nd Protestors/Applicants, is for determination herein. The application is expressed to be brought principally under section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules. The prayers seek revocation or annulment of the grant of letters of administration intestate issued to Patrick Kimutai Rugut on 19th September 2025 and consequential directions on the administration of the estate of the deceased.
2. The application was opposed by the Petitioner/Respondent through his replying affidavit sworn on 18th November 2025. The court directed that the application be canvassed by written submissions. I have considered the application, the petition documents, the affidavits, the annexures and the rival submissions filed by counsel.
3. The background is largely common ground. Solomon Kimeto Arap Simwolo, alias Solomon Kimeto Simwolo alias Solomon arap Simwolo, died on 14th November 1980. The Respondent petitioned for a grant in his capacity as a grandson of the deceased. A grant of letters of administration intestate was issued to him on 19 September 2025. The grant has not been confirmed.
4. In the affidavit in support of the petition, the Respondent listed the deceased's children as Samwel K. Kimeto, Andrea K. Kimeto, James K. Kimeto, Joseph K. Kimeto, Benjamin Kiplangat Simwolo, Tamaru C. Siongok, Martha C. Birgen, Prisila C. Langat and Esther C. Ruto, all indicated as deceased. He then listed several grandchildren and added the phrase 'and several others'. The assets disclosed were Kericho/Sosiot/525 (approximately 9.0 hectares) and Molo South Ikumbi/Block 6/24 (Set Kobor), with an estimated value of Kshs. 22,000,000.
5. The Applicants contend that the grant was obtained through a defective process, concealment of material facts and misrepresentation. They argue that the Respondent did not fully disclose the family tree, did not obtain proper consents from all beneficiaries or persons entitled in priority or equality, relied on an inadequate chief's letter and failed to disclose all properties said to have been left by the deceased. They also argue that, because the deceased died before the commencement of the Law of Succession Act, the applicable customary context and alleged lifetime gifts cannot be ignored.
6. The Respondent argued that he is a grandson and a beneficiary of the estate of deceased and he was therefore entitled to petition. He states that the succession cause was gazetted in the Kenya Gazette of 19th August 2025 and no objection was lodged within the gazette period. He further avers that he obtained a letter from the area chief dated 26th February 2025 stating that the grant is yet to be confirmed and that any dispute regarding the identity or extent of the estate can be addressed at confirmation. He submits that the Applicants have not proved fraud and that daughters-in-law do not enjoy priority over an administrator appointed by the court.
7. The issues that arise are firstly , whether the Applicants have established a basis for revocation or annulment of the grant under section 76 of the Law of Succession Act; and secondly, what consequential orders should issue.
8. The deceased died on 14th November 1980, before the Law of Succession Act came into operation on 1st July 1981. Section 2(2) of the Act provides that the estates of persons dying before commencement of the Act are subject to the written laws and customs applying at the date of death, but the administration of their estates shall commence or proceed so far as possible in accordance with the Act. It follows that the present question of representation and administration is governed by the Act, while the question of final beneficial entitlement and distribution may, at the appropriate stage, require evidence on the applicable law and custom at the date of death.
9. Section 76 of the Law of Succession Act empowers the court, either on application by an interested party or on its own motion, to revoke or annul a grant whether or not confirmed if the proceedings to obtain it were defective in substance, if it was obtained fraudulently by the making of a false statement or concealment of something material, or if it was obtained by means of an untrue allegation of a fact essential in point of law. Rule 26 of the Probate and Administration Rules also provides that letters of administration shall not be granted to an applicant without notice to every other person entitled in the same degree as or in priority to the applicant, and that where the applicant ranks equally with or below others, the application must be supported by renunciation, written consent in Form 38 or 39, or other evidence as the court may require.
10. The Jurisdiction to revoke a grant is discretionary and must be exercised judicially. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), the court emphasised that there must be evidence of wrongdoing or statutory grounds before section 76 is invoked. On the other hand, the authorities cited by the Applicants, including Rachael Wanjiru Karanja v Nancy Wambui Kamau [2015] eKLR and In re Estate of Charles Muriithi Kahiga (Deceased) [2023] KEHC 18263 (KLR), affirm that material non-disclosure of beneficiaries or persons claiming interest in the estate is a proper basis for revocation.
11. I am not persuaded that the fact of gazettement, by itself, answers the Applicants' complaint. Gazettement gives public notice of the petition. It does not dispense with the obligation of a petitioner to place before the court a candid and complete disclosure of the deceased's survivors, beneficiaries, persons with equal or priority right and the known assets of the estate. Nor does it cure a defective Form 38 where the record itself shows that known persons were not properly accounted for.
12. The record of the petition is unsatisfactory in material respects. Firstly , the Respondent's own list of grandchildren ends with the phrase 'and several others'. A petition for representation cannot leave beneficiaries at large in that manner. The court must know the persons whose interests may be affected so that it can determine priority, suitability and notice.
13. Secondly, the Form 38 filed by the Respondent does not appear, on its face, to contain the written consent of all persons entitled in equality with or priority to him. Some entries have no identity card numbers or signatures. In particular, the entries relating to Redina/Redinah Kimetto and Jane Kimetto, who are central to the present application, are not complete on the face of the form. I do not make a conclusive finding of forgery because the evidence before the court is insufficient to support it. However, the form is plainly not a complete and reliable consent by all concerned beneficiaries.
14. Thirdly, the applicants assert their interest through the houses of deceased sons of the deceased, and one of them appears in the Respondent's own consent form. The chief’s letter dated 9.9.24 lists them as the deceased's daughters-in-law. The Respondent is a grandson of the deceased .
Section 51 of the Law of Succession Act provides that :
(1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) An application shall include information as to—
(a) in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
(b) a full inventory of all the assets and liabilities of the deceased; and (ii) such other matters as may be prescribed.
15. The protestors thus rank higher than the petitioner/respondent herein in the order of consanguinity higher in this cause, as rightly submitted by them . The applicants are therefore given priority in obtaining letters of administration of the deceased's estate over the applicant, who is the deceased's grandson.
16. Fourthly, there is also a dispute on the assets of the deceased . The Respondent listed Kericho/Sosiot/525 and Molo South Ikumbi/Block 6/24 (Set Kobor). The Applicants say there were other properties and that the deceased made lifetime gifts. The Respondent says Kericho/Sosiot/83 and Kericho/Sosiot/84 do not belong to the estate and relies on official searches. This dispute cannot be conclusively determined at this stage. However, the dispute reinforces the need to file a full inventory and proper title documents or searches before the estate proceeds to confirmation.
17. I therefore find that the proceedings leading to the grant issued on 19th September 2025 were defective in substance for non-compliance with Section 51 of the Law of Succession Act and thus fall within Section 76 (a) of the Act .
18. In the result, the application dated 7th October 2025 succeeds in part, and I make the following orders:
a. The grant of letters of administration intestate issued to Patrick Kimutai Rugut on 19th September 2025 in respect of the estate of Solomon Kimeto Arap Simwolo alias Solomon arap Simwolo is hereby revoked and annulled
b. I proceed to appoint Jane Kimetto , Redinah Koskei Kimeto and Patrick Kimutai Rugut as the joint administrators of the estate of the deceased. A fresh grant of letters of administration to issue accordingly
c. The administrators shall within sixty (30 ) days from today obtain and file a comprehensive introduction letter from the area chief or relevant local administrator of the deceased's last known residence setting out all the survivors of the deceased.
d. An inventory of the full assets of the deceased and recent searches for land parcels be filed within 45 days from today.
e. Summons for confirmation of grant be filed and served upon all the survivors within 60 days from today.
f. The matter shall be mentioned on 18.11.2026 for compliance /confirmation
g. This being a family matter , costs shall be in the cause.
T. A ODERA JUDGE
2.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 2ND DAY OF JULY 2026 . IN THE PRESENCE OF :
Mr Okok for the petitioner/respondent .
Miss Cherotich holding brief for Mr O. Langat for the 2nd protestor .
Mr G. Langat for the 1st protester absent
. CA : Busienei
2 | Page
IN THE HIGH COURT OF KENYA AT KERICHO
SUCCESSION CAUSE NO. E028 OF 2025
IN THE MATTER OF THE ESTATE OF SOLOMON KIMETO ARAP SIMWOLO alias SOLOMON ARAP SIMWOLO (DECEASED)
JANE CHELANGAT KIMETO.................................1ST PROTESTOR/APPLICANT
REDINAH CHEPKOSKEI KIMETO.............................2ND PROTESTOR/APPLICANT
VERSUS
PATRICK KIMUTAI RUGUT..................................PETITIONER/RESPONDENT
Ruling
1. Summons dated 7th October 2025 filed by Jane Chelangat Kimeto and Redinah Chepkoskei Kimeto, the 1st and 2nd Protestors/Applicants, is for determination herein. The application is expressed to be brought principally under section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules. The prayers seek revocation or annulment of the grant of letters of administration intestate issued to Patrick Kimutai Rugut on 19th September 2025 and consequential directions on the administration of the estate of the deceased.
2. The application was opposed by the Petitioner/Respondent through his replying affidavit sworn on 18th November 2025. The court directed that the application be canvassed by written submissions. I have considered the application, the petition documents, the affidavits, the annexures and the rival submissions filed by counsel.
3. The background is largely common ground. Solomon Kimeto Arap Simwolo, alias Solomon Kimeto Simwolo alias Solomon arap Simwolo, died on 14th November 1980. The Respondent petitioned for a grant in his capacity as a grandson of the deceased. A grant of letters of administration intestate was issued to him on 19 September 2025. The grant has not been confirmed.
4. In the affidavit in support of the petition, the Respondent listed the deceased's children as Samwel K. Kimeto, Andrea K. Kimeto, James K. Kimeto, Joseph K. Kimeto, Benjamin Kiplangat Simwolo, Tamaru C. Siongok, Martha C. Birgen, Prisila C. Langat and Esther C. Ruto, all indicated as deceased. He then listed several grandchildren and added the phrase 'and several others'. The assets disclosed were Kericho/Sosiot/525 (approximately 9.0 hectares) and Molo South Ikumbi/Block 6/24 (Set Kobor), with an estimated value of Kshs. 22,000,000.
5. The Applicants contend that the grant was obtained through a defective process, concealment of material facts and misrepresentation. They argue that the Respondent did not fully disclose the family tree, did not obtain proper consents from all beneficiaries or persons entitled in priority or equality, relied on an inadequate chief's letter and failed to disclose all properties said to have been left by the deceased. They also argue that, because the deceased died before the commencement of the Law of Succession Act, the applicable customary context and alleged lifetime gifts cannot be ignored.
6. The Respondent argued that he is a grandson and a beneficiary of the estate of deceased and he was therefore entitled to petition. He states that the succession cause was gazetted in the Kenya Gazette of 19th August 2025 and no objection was lodged within the gazette period. He further avers that he obtained a letter from the area chief dated 26th February 2025 stating that the grant is yet to be confirmed and that any dispute regarding the identity or extent of the estate can be addressed at confirmation. He submits that the Applicants have not proved fraud and that daughters-in-law do not enjoy priority over an administrator appointed by the court.
7. The issues that arise are firstly , whether the Applicants have established a basis for revocation or annulment of the grant under section 76 of the Law of Succession Act; and secondly, what consequential orders should issue.
8. The deceased died on 14th November 1980, before the Law of Succession Act came into operation on 1st July 1981. Section 2(2) of the Act provides that the estates of persons dying before commencement of the Act are subject to the written laws and customs applying at the date of death, but the administration of their estates shall commence or proceed so far as possible in accordance with the Act. It follows that the present question of representation and administration is governed by the Act, while the question of final beneficial entitlement and distribution may, at the appropriate stage, require evidence on the applicable law and custom at the date of death.
9. Section 76 of the Law of Succession Act empowers the court, either on application by an interested party or on its own motion, to revoke or annul a grant whether or not confirmed if the proceedings to obtain it were defective in substance, if it was obtained fraudulently by the making of a false statement or concealment of something material, or if it was obtained by means of an untrue allegation of a fact essential in point of law. Rule 26 of the Probate and Administration Rules also provides that letters of administration shall not be granted to an applicant without notice to every other person entitled in the same degree as or in priority to the applicant, and that where the applicant ranks equally with or below others, the application must be supported by renunciation, written consent in Form 38 or 39, or other evidence as the court may require.
10. The Jurisdiction to revoke a grant is discretionary and must be exercised judicially. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR), the court emphasised that there must be evidence of wrongdoing or statutory grounds before section 76 is invoked. On the other hand, the authorities cited by the Applicants, including Rachael Wanjiru Karanja v Nancy Wambui Kamau [2015] eKLR and In re Estate of Charles Muriithi Kahiga (Deceased) [2023] KEHC 18263 (KLR), affirm that material non-disclosure of beneficiaries or persons claiming interest in the estate is a proper basis for revocation.
11. I am not persuaded that the fact of gazettement, by itself, answers the Applicants' complaint. Gazettement gives public notice of the petition. It does not dispense with the obligation of a petitioner to place before the court a candid and complete disclosure of the deceased's survivors, beneficiaries, persons with equal or priority right and the known assets of the estate. Nor does it cure a defective Form 38 where the record itself shows that known persons were not properly accounted for.
12. The record of the petition is unsatisfactory in material respects. Firstly , the Respondent's own list of grandchildren ends with the phrase 'and several others'. A petition for representation cannot leave beneficiaries at large in that manner. The court must know the persons whose interests may be affected so that it can determine priority, suitability and notice.
13. Secondly, the Form 38 filed by the Respondent does not appear, on its face, to contain the written consent of all persons entitled in equality with or priority to him. Some entries have no identity card numbers or signatures. In particular, the entries relating to Redina/Redinah Kimetto and Jane Kimetto, who are central to the present application, are not complete on the face of the form. I do not make a conclusive finding of forgery because the evidence before the court is insufficient to support it. However, the form is plainly not a complete and reliable consent by all concerned beneficiaries.
14. Thirdly, the applicants assert their interest through the houses of deceased sons of the deceased, and one of them appears in the Respondent's own consent form. The chief’s letter dated 9.9.24 lists them as the deceased's daughters-in-law. The Respondent is a grandson of the deceased .
Section 51 of the Law of Succession Act provides that :
(1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) An application shall include information as to—
(a) in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
(b) a full inventory of all the assets and liabilities of the deceased; and (ii) such other matters as may be prescribed.
15. The protestors thus rank higher than the petitioner/respondent herein in the order of consanguinity higher in this cause, as rightly submitted by them . The applicants are therefore given priority in obtaining letters of administration of the deceased's estate over the applicant, who is the deceased's grandson.
16. Fourthly, there is also a dispute on the assets of the deceased . The Respondent listed Kericho/Sosiot/525 and Molo South Ikumbi/Block 6/24 (Set Kobor). The Applicants say there were other properties and that the deceased made lifetime gifts. The Respondent says Kericho/Sosiot/83 and Kericho/Sosiot/84 do not belong to the estate and relies on official searches. This dispute cannot be conclusively determined at this stage. However, the dispute reinforces the need to file a full inventory and proper title documents or searches before the estate proceeds to confirmation.
17. I therefore find that the proceedings leading to the grant issued on 19th September 2025 were defective in substance for non-compliance with Section 51 of the Law of Succession Act and thus fall within Section 76 (a) of the Act .
18. In the result, the application dated 7th October 2025 succeeds in part, and I make the following orders:
a. The grant of letters of administration intestate issued to Patrick Kimutai Rugut on 19th September 2025 in respect of the estate of Solomon Kimeto Arap Simwolo alias Solomon arap Simwolo is hereby revoked and annulled
b. I proceed to appoint Jane Kimetto , Redinah Koskei Kimeto and Patrick Kimutai Rugut as the joint administrators of the estate of the deceased. A fresh grant of letters of administration to issue accordingly
c. The administrators shall within sixty (30 ) days from today obtain and file a comprehensive introduction letter from the area chief or relevant local administrator of the deceased's last known residence setting out all the survivors of the deceased.
d. An inventory of the full assets of the deceased and recent searches for land parcels be filed within 45 days from today.
e. Summons for confirmation of grant be filed and served upon all the survivors within 60 days from today.
f. The matter shall be mentioned on 18.11.2026 for compliance /confirmation
g. This being a family matter , costs shall be in the cause.
T. A ODERA JUDGE
2.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 2ND DAY OF JULY 2026 . IN THE PRESENCE OF :
Mr Okok for the petitioner/respondent .
Miss Cherotich holding brief for Mr O. Langat for the 2nd protestor .
Mr G. Langat for the 1st protester absent
. CA : Busienei
2 | Page